DARCIE DIVITA v. JOHN ZIEGLER; AND CLEAR CHANNEL BROADCASTING, INC. D/B/A 84 WHAS RADIO
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RENDERED:
JANUARY 5, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001343-MR
DARCIE DIVITA
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 03-CI-009214
v.
JOHN ZIEGLER; AND
CLEAR CHANNEL BROADCASTING, INC.
D/B/A 84 WHAS RADIO
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON1 AND SCHRODER,2 JUDGES; MILLER,3 SPECIAL JUDGE.
JOHNSON, JUDGE:
Darcie Divita has appealed from the orders
entered by the Jefferson Circuit Court on January 21, 2005, and
May 26, 2005, which dismissed her claims against John Ziegler
1
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
2
Judge Wilfrid A. Schroder concurred in this opinion prior to the expiration
of his term of office on December 31, 2006. Release of the opinion was
delayed by administrative handling.
3
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
and Clear Channel Inc. D/B/A 84 WHAS radio4 with prejudice.
Having concluded that summary judgment was proper as a matter of
law, that the jury was properly instructed, and that the trial
court did not abuse its discretion in its evidentiary rulings,
or that the evidentiary issue is moot, we affirm.
FACTS
Divita was hired by WDRB Fox 41 in January 2003 to coanchor its morning show called “Fox In The Morning.”
Part of
Divita’s job as an employee of Fox was to speak at various
public occasions, including graduations, charity events,
fundraisers, and awards banquets.
Divita also did paid
endorsements for local businesses and served as a spokesperson.
After her arrival in Louisville, Divita became
personally involved with another public figure, Ziegler—a radio
talk show host in Louisville, employed by Clear Channel from
July 2002 through August 2003.
Ziegler’s talk show covered
various topics, including news, politics, local interest
stories, and Ziegler’s personal life.
One segment of Ziegler’s
show was entitled “Ask John Anything,” in which listeners would
call in and ask Ziegler questions of their choice.
Listeners
with the most interesting or strangest questions would be
4
Clear Channel is a Nevada corporation, with its principal place of business
in San Antonio, Texas, and licensed to do business in the Commonwealth of
Kentucky as 84 WHAS Radio, a 50,000-watt AM radio station. For the remainder
of this Opinion, WHAS and Clear Channel will be collectively referred to as
Clear Channel.
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awarded prizes.
Prior to August 22, 2003, Ziegler had been
warned by his employer not to discuss the personal lives of
public figures, especially Fox 41 personnel and, in particular,
Divita.
Divita and Zeigler met in early February 2003
through mutual friends.
The seriousness of their relationship
is disputed by the parties.
Divita claims that the parties had
a non-exclusive, dating relationship that spanned a period of
over two months.
During this time, the parties went to dinner,
attended a basketball game, went dancing, and met for coffee.
According to Divita, the relationship came to an end in April
2003 when Ziegler continued to discuss her and their
relationship in a personal way on his show, even though she had
asked him not to do so.
Divita claims that each time Ziegler
spoke of her on his show, she would ask him not to do so again,
but that he continued to do so after promising that these
actions would cease.
As their relationship began to deteriorate, Divita
claims that Ziegler became angrier at her for seeing other men,
despite the fact that she had told him she did not want an
exclusive relationship with him.
On April 9, 2003, Ziegler sent
Divita an email in which he stated, “I am glad to know that I am
now fully free to tell the WHOLE story without trying to protect
you as I have been attempting to do.
-3-
Good luck.
You will most
certainly need it.”
On July 16, 2003, Divita’s name was placed
on Ziegler’s official website on an “enemies” list, a list of
people that Ziegler disliked.
Divita’s last appearance on “Fox In The Morning” was
on August 22, 2003.
That same day, Ziegler entitled a segment
of his talk show, “The Demise of Darcie Divita”.
During the
segment, Ziegler referred to Divita as a pathological liar,
insinuated that she was unchaste, discussed the quality of her
breast augmentation surgery, stated that Divita did not wear
underwear, and claimed that her genital area was groomed.
Further, Ziegler referred to Divita’s former Fox co-anchor and
her as “the Dork and the Devil.”
Ziegler also implied that
Divita lacked intelligence because she was a former cheerleader.
Several of these statements were later published on Ziegler’s
website.
Subsequently, in an article in the local Louisville
weekly publication, The Louisville Eccentric Observer, Ziegler
defended and reaffirmed his comments in writing.
In September 2003 Divita resigned from her anchor
position at Fox.
She attributed her leaving to program format
changes and her desire to take some personal time to focus on
her health after she had been preliminarily diagnosed with
multiple sclerosis.
Georgia.
Divita subsequently relocated to Atlanta,
She contends that she was not able to find a job in
her field and that Ziegler’s comments “have come up in
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conversations [she] has had with potential employers, appears in
website searches of [her] name, and appears in background checks
and industry newsletters.”
Divita also contends that she has
suffered embarrassment, humiliation, mental anguish, and a loss
of reputation as a result of the appellees’ acts.
Divita argues that despite the fact that Clear Channel
knew that Ziegler had the propensity for making inappropriate
and potentially defamatory remarks on the air, it failed to
reasonably supervise him and his conduct caused irreparable
injury to her and her reputation.
Divita states in her brief,
“Clear Channel was put on notice and warned about [ ] Ziegler’s
tendencies, but chose to ignore the warnings in favor of his
high ratings.
Clear Channel thereby acquiesced to his behavior
and contributed significantly to [her] injuries.”
PROCEDURAL HISTORY
On October 22, 2003, Divita filed her verified
complaint, in which she alleged that both Ziegler and Clear
Channel acted in reckless disregard for her rights and/or was
grossly negligent, malicious, oppressive and/or fraudulent and
that she was entitled to compensatory damages, including pain
and suffering, damage to reputation/character, and past,
present, and future lost wages, and punitive damages.
Ziegler
filed his answer on November 18, 2003, in which he admitted that
during his employment with Clear Channel he made comments
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regarding Divita.
On November 20, 2003, Clear Channel filed its
answer, in which it admitted that it had been Ziegler’s employer
and that during that time Ziegler made oral statements about
Divita on his radio show, but denied that the statements
concerned her private life.
Both Ziegler and Clear Channel
asserted various affirmative defenses in their answers.5
On September 28, 2004, Clear Channel filed its motion
for summary judgment.
In support of its motion, Clear Channel
relied upon the deposition testimony of Kelly Carls, Ziegler’s
direct supervisor, and Bill Gentry, the General Manager of Clear
Channel during the relevant time-period.
Carls stated that at
the time Ziegler was hired, he was made aware of the station’s
standards “[t]hrough the standard indoctrination process that
[Clear Channel does] with new employees.”
He testified that he
met with Ziegler on a “regular basis” over the 13 months that
Ziegler worked at Clear Channel to discuss the station’s
standards.
The first time Carls had a discussion with Ziegler
about his on-air comments was when Ziegler discussed a wellknown local sports writer’s alcohol problems on the air and
Carls told him to stop.
Carls had to revisit the issue when
Ziegler started making comments on the air regarding Fox 41
5
Clear Channel amended its answer on November 21, 2003, and Ziegler amended
his answer on November 24, 2003.
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personnel, including Divita.
Both Carls and Gentry met with
Ziegler and told him not to discuss Divita’s personal life on
his program.
They told Ziegler that he could discuss the
professional and public affairs of Fox 41 personnel, but he
should not discuss their personal lives.
Gentry testified that
this directive was explicit and that he believed Ziegler
understood it.
For the next two months it appeared that Ziegler
followed his employer’s limitations.
Then on Friday, August 22,
2003, Ziegler discussed the newsworthy story of Divita’s
departure from Fox 41 and the trials of his relationship with
her.
Carls testified that neither he nor anyone else at Clear
Channel knew that Ziegler was going to discuss Divita’s
departure.
Ziegler’s superiors instructed him to apologize on
his next radio show, which he did on Tuesday, August 26, 2003.
The following day, Ziegler was terminated from his employment
for disobeying Clear Channel’s directive not to discuss his
personal relationship with Divita on the air.
In its motion for summary judgment, Clear Channel
argued that Divita’s complaint against it should be dismissed
because as a matter of law each of the statements she relied
upon failed to support a viable claim.
Clear Channel argued
that, as an all-purpose public figure, Divita could not prove
constitutional actual malice, by clear and convincing evidence,
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regardless of the topics discussed,6 because she could not
establish that in making each challenged statement, Ziegler knew
that the statement was false or acted with “reckless disregard”
of its truth or falsity.7
Clear Channel contended that to rule
otherwise would “chill” the exercise of free speech.
Second, Clear Channel argued that Divita’s defamation
claim failed as a matter of law because some of the statements
about which she complained were statements of protected opinion.
In support of this argument, Clear Channel cited Stepien v.
Franklin,8 wherein a radio talk show host called the owner of a
professional basketball team a “pathological liar,” “stupid,”
“an obscenity,” and “nuts.”9
The trial court found that a
reasonable listener would know that these were statements of
opinion and stated that “we cannot place on a commentator the
burden to protect against listeners who are not reasonable.”10
Third, Clear Channel argued that Divita’s defamation
claim failed as a matter of law because, based upon undisputed
evidence, some of the statements about which she complained were
true or substantially true.
6
Specifically, Clear Channel was
See Welch v. American Publishing Co. of Ky., 3 S.W.3d 724, 728 (Ky. 1999).
7
Welch , 3 S.W.3d at 727; Warford v. Lexington Herald-Leader Co., 789 S.W.2d
758, 771 (Ky. 1990).
8
528 N.E.2d 1324 (Ohio Ct.App. 1988).
9
Stepien, 528 N.E.2d at 1327.
10
Id. at 1329.
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referring to the statements that Divita did not wear underwear
and that she was “well-kept” in her genital area.
Divita’s own
sworn testimony established that both of these statements were
substantially true.
Fourth, Clear Channel argued that Divita’s invasion of
privacy claim failed as a matter of law because Ziegler’s
statements about Divita on Clear Channel were oral.
It argued
that Ziegler’s comments were privileged under applicable
defamation law because they are either protected statements of
opinion or substantially true statements of fact, and that
Ziegler’s comments concerned matters of public or general
interest, and that Divita could not show actual malice as a
matter of law.
Fifth, Clear Channel argued that Divita’s intrusion
upon seclusion claim failed as a matter of law, because,
pursuant to Section 652(B) of the Restatement (Second) of Torts,
it required the showing of a physical intrusion, unauthorized
snooping, or other investigation without Divita’s authorization,
which Divita had not offered to prove.
Sixth, Clear Channel argued that Divita could not
establish the elements necessary for a false light claim, i.e.,
Divita could not show actual malice or reckless disregard as to
the truth of the statements and she further could not show that
the statements would be highly offensive to a reasonable person.
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Seventh, Clear Channel argued that Divita’s
misappropriation claim failed as a matter of law because she
alleged no facts showing that Ziegler misappropriated her
commercial interest in her identity.
Rather, the alleged facts
only showed that Ziegler discussed her identity primarily for
the purpose of communicating information or expressing ideas,
which are not actionable as a misappropriation claim.
Eighth, Clear Channel argued that Divita’s public
disclosure of private facts claim failed as a matter of law
because the story was newsworthy and Divita was a public figure.
Clear Channel states in its brief that “there is a logical nexus
between the topics covered on Ziegler’s August 22, 2003[,]
broadcast and this newsworthy story.”
Finally, Clear Channel argued that Divita’s tort of
outrage claim failed as a matter of law, as she was unable to
meet the four required elements of (1) intentionally or
recklessly engaging in; (2) extreme or outrageous conduct; (3)
that causes; (4) severe emotional distress.11
In Kentucky, the
claimant must also be able to show that the defendant solely
intended to cause the plaintiff emotional distress when engaging
in the offensive conduct.12
On January 21, 2005, the trial court granted
11
Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984).
12
Gross v. Citizens Fidelity Bank-Winchester, 867 S.W.2d 212, 215 (Ky.App.
1993).
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Clear Channel’s motion for summary judgment, in part, dismissing
Divita’s claims of negligent hiring, retention and/or
supervision, misappropriation of property, and outrageous
conduct.
On May 21, 2005, the trial court granted Ziegler’s
motion for summary judgment, in part, dismissing Divita’s claims
of misappropriation of property.
On May 16, 2005, a jury trial was held in this matter
on the remaining issues, including libel, intentional infliction
of emotional distress, defamation, and invasion of privacy.
At
the close of the evidence, the jury was instructed by the trial
court and returned a verdict in favor of both Clear Channel and
Ziegler on all claims presented.
On May 26, 2005, the trial
court entered a trial order and final judgment dismissing
Divita’s claims with prejudice.
This appeal followed.13
ARGUMENTS
Jury Instruction Properly Included Actual Malice
Divita argues that the trial court’s jury instruction
on her claim of intentional infliction of emotional distress was
prejudicial and constitutes reversible error because it included
the element of actual malice.
The instruction stated as
follows:
13
Both Clear Channel and Zeigler filed cross appeals in this case. However,
both have been dismissed upon motion of the appellees by order of this Court
dated June 14, 2006.
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To recover under the Intentional Infliction
of Emotional Distress Claim, [ ] Divita must
have proved by clear and convincing evidence
the following:
1.
That during the period of time from
March 2003 until May 2005 [ ] Ziegler
made remarks to [ ] Divita or published
remarks to others, made statements
orally, in print, on his station,
through email, etc., that were intended
by him to cause emotional distress to [
] Divita;
2.
That such remarks or statements did in
fact cause [Divita] to suffer severe
emotional distress;
3.
That such conduct on the part of [ ]
Ziegler clearly exceeded the bounds of
common decency as would be observed in
any civilized community; AND
4.
That [ ] Ziegler made the statements
with “actual malice” as defined in these
instructions.
Otherwise, you will find for [ ] Ziegler.
[emphasis added].
“Actual malice” was defined in the jury instructions
as follows:
To prove “actual malice,” a Plaintiff must
prove by clear and convincing evidence that
the speaker either (1) knew the statement
was false at the time it was made or (2)
acted with “reckless disregard” as to
whether the statement was true or false.
“Reckless disregard” means the speaker
either (1) entertained serious doubts as to
the truth or falsity of the statements or
(2) had a high degree of awareness as to
whether the statement was probably false.
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The jury returned a verdict in favor of Ziegler on Divita’s
claim of intentional infliction of emotional distress.
Clear Channel argues that the actual malice
instruction was appropriate because the “knowing falsity”
standard is mandated by the United States Constitution.
Clear
Channel states that “application of the constitutionally
mandated ‘knowing falsity’ element to a public figure’s14
emotional distress claims arising from speech is entirely
consistent with the ‘restricted/limited’ view of the tort of
outrage under Kentucky law.”15
To meet this standard, the
plaintiff must show that a defendant “‘entertained serious
doubts’ as to the truth” of the statement [citations omitted].16
Mere negligence is not enough.17
14
It is undisputed that Divita and Ziegler were both public figures. An
individual who is a public figure in “all aspects of [the individual’s] life”
should be treated as an “all-purpose” public figure by the court. Gertz v.
Robert Welch, Inc., 418 U.S. 323, 352, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
See also Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1295 (D.C.
Cir. 1980). An individual becomes an all-purpose public figure when he or
she gains “general fame or notoriety” which occurs when the individual is
known to a large portion of well-informed citizens. Gertz, 418 U.S. at 352;
Waldbaum, 627 F.2d at 1295, n.20. To be an all-purpose public figure, an
individual must meet this requirement in the community where the alleged
defamation occurred. Waldbaum, 627 F.2d at 1295, n.22. A determination of
whether an individual is a public figure is made by the court as a matter of
law. See Yancey v. Hamilton, 786 S.W.2d 854, 859 (Ky. 1989); Warford, 798
S.W.2d at 761.
15
See Sacharnoski v. Capital Consolidated, Inc., 187 F.Supp.2d 843, 845
(W.D.Ky. 2002); Bevins v. Dollar General Corp., 952 F.Supp. 504, 511 (E.D.Ky.
1997).
16
Welch, 3 S.W.3d at 727.
17
Welch, 3 S.W.3d at 727. See Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d
781, 788 (Ky. 2004); Craft, 671 S.W.2d at 249; Restatement (Second) of Torts
§ 46, comment F (stating that “[t]he extreme and outrageous character of the
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The trial court’s decision to use the “actual malice”
requirement in the jury instructions was based upon the United
States Supreme Court’s holding in Hustler Magazine v. Falwell,18
which prohibited the plaintiff Falwell from attempting to bypass
the actual malice standard for defamation of a public figure by
asserting a claim for outrage as an end-run around the First
Amendment limitations.
The Supreme Court explained the need for
the actual malice requirement as “it reflects our considered
judgment that such a standard is necessary to give adequate
‘breathing space’ to the freedoms protected by the First
Amendment.”19
First Amendment principles require protection of
speech—even offensive speech.20
Any holding to the contrary
“would have an undoubted ‘chilling’ effect on speech relating to
public figures that does not have constitutional value.”21
The
limited holding in Hustler Magazine was that “public figures . .
. may not recover for the tort of intentional infliction of
emotional distress by reason of publications . . . without
showing in addition that the publication contains a false
conduct may arise from the actor’s knowledge that the other is peculiarly
susceptible to emotional distress, by reason of some physical or mental
condition or peculiarity. The conduct may become heartless, flagrant, and
outrageous when the actor proceeds in the face of such knowledge, where it
would not be so if he did not know”).
18
485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
19
Hustler Magazine, 485 U.S. at 56.
20
Hustler Magazine, 485 U.S. at 55.
21
Hustler Magazine, 485 U.S. at 52.
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statement of fact which was made with ‘actual malice,’22 i.e.,
with knowledge that the statement was false or with reckless
disregard as to whether or not it was true.”23
Divita argues that her case is distinguishable
from Hustler Magazine in that her claims were based upon both
false, defamatory statements and true statements which were
outrageous in nature and made with the intent to cause her
severe emotional distress. She contends that based upon the
instructions given, the jury was not allowed to determine the
truth of comments by Ziegler that were completely outrageous,
especially for a 50,000-watt radio station.
Clear Channel
argues to the contrary that First Amendment principles require
more—not less—protection for true statements about public
figures than obviously false statements.
Clearly, Hustler Magazine is the controlling precedent
concerning a challenged publication involving a public figure.24
22
In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d
686 (1964), the Supreme Court established the “knowing falsity” standard in
determining the constitutional limitations on the law of libel. In Sullivan,
the Supreme Court used the phrase “actual malice,” but the high Court
explained the evidentiary standard was “knowing falsity.”
23
Hustler Magazine, 485 U.S. at 56.
24
See New Times, Inc. v. Isaacks, 146 S.W.3d 144, 165 (Tex. 2004) (stating
that “evidence of intent to ridicule is not evidence of actual malice.
Rather, actual malice concerns the defendant’s attitude toward truth, not
toward the plaintiff”); Lam v. Ngo, 91 Cal.App.4th 832, 848 (2001) (public
figures’ infliction of emotional distress claims arising from publications
are governed by the principles of Hustler Magazine); and Dworkin v. Hustler
Magazine, Inc., 867 F.2d 1188, 1195 (9th Cir. 1989) (stating that “lack of
[Sullivan] malice is a proper ground for summary judgment”).
-15-
First Amendment principles—and the heightened “knowing falsity”
standard—apply, regardless of the label placed on a plaintiff’s
tort claim.
Hustler Magazine makes clear that Divita may not
attempt to “end-run around First Amendment strictures” by
labeling her tort claim as the intentional infliction of
emotional distress rather than as defamation.25
The Supreme Court further held in Sullivan, that the
actual malice standard did not refer to a showing of “ill will”
or “personal spite” in the ordinary sense,26 “but rather is ‘a
shorthand to describe the First Amendment protections for speech
injurious to reputation’” [citations omitted].27
Hustler
Magazine goes on to state that “while such a bad motive may be
deemed controlling for purposes of tort liability in other areas
of the law, we think the First Amendment prohibits such a result
in the area of public debate about public figures.”28
“[T]he
focus of the inquiry is not on the defendant’s attitude toward
the plaintiff, but rather on the defendant’s attitude toward the
25
Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 522 (4th Cir.
1999).
26
See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667,
n.7, 109 S.Ct. 2678, 105 L.Ed.2d 562, (1989).
27
Isaacks, 146 S.W.3d at 161.
28
Hustler Magazine, 485 U.S. at 53.
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truth or falsity of the statement alleged to be defamatory”
[emphases original] [citations omitted].29
Clear Channel argues that Divita’s claim as to
Ziegler’s subjective intent is irrelevant to proving “knowing
falsity.”
Further, Clear Channel argues that any profit motive
it may have had was irrelevant and not proof of knowing
falsity.30
Clear Channel argues that “[b]ecause the First
Amendment requires Divita to carry the burden of proving by
clear and convincing evidence31 that Ziegler spoke with actual
knowledge of the falsity of his statements, or with reckless
disregard for the truth of those statements, the jury
instructions for Divita’s emotional distress claim were proper.
The underlying verdict itself has not been challenged, and is
clearly supported by overwhelming evidence from trial.
The
jury’s verdict—and the Judgment based thereon—must be affirmed.”
Ziegler points out that none of the cases relied upon
by Divita for the Kentucky standard of intentional infliction of
emotional distress involved comments about a public figure.
29
Varanese v. Gall, 518 N.E.2d 1177, 1180 (Ohio 1988). See also Hustler
Magazine, 485 U.S. at 53 (quoting Garrison v. Louisiana, 379 U.S. 64 (1964)
“even if he did speak out of hatred, utterances honestly believed contribute
to the free interchange of ideas and the ascertainment of truth”); and Cobb
v. Time, Inc., 278 F.3d 629 (6th Cir. 2002).
30
Harte-Hanks Communications, Inc., 491 U.S. at 667 (stating that “[i]f a
profit motive could somehow strip communications of the otherwise available
constitutional protection, our cases from [Sullivan] and Hustler Magazine
would be little more than empty vessels”).
31
See Warford, 789 S.W.2d at 771.
-17-
However, virtually every court that has addressed this issue has
followed Hustler Magazine and applied actual malice to many
other types of tortious conduct when speech about a public
figure was part of the claim.32
Constitutional “actual malice”
has been applied by all courts addressing this type of claim
involving an issue of intentional infliction of emotional
distress.
Indeed, Constitutional “actual malice” applies to a
variety of claims when such claims are based upon speech.33
Thus, the trial court correctly instructed the jury on Divita’s
claim of intentional infliction of emotional distress, and we
affirm on this issue.
32
See Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485,
104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (applying the actual malice standard to
a product disparagement claim). See also Bichler v. Union Bank & Trust Co.
of Grand Rapids, 745 F.2d 1006, 1013 (6th Cir. 1984) (examining a public
disclosure of private facts, stating that “[t]he same constitutional standard
applies in actions for invasion of privacy”).
33
See Bass v. Hendrix, 931 F.Supp. 523, 530 (S.D.Tex. 1996) (finding a claim
for intention infliction of emotional distress barred unless the plaintiff
can prove actual malice as required by the United States Supreme Court in
Hustler Magazine); Deupree v. Iliff, 860 F.2d 300, 304-05 (8th Cir. 1988)
(finding that Hustler Magazine precluded an award of damages for intentional
infliction of emotional distress as a result of an expression of opinion);
Dworkin, 867 F.2d at 1194-95 (9th Cir. 1989) (finding that a plaintiff must
prove actual malice to prevail on her intentional infliction of emotional
distress claim); Fasi v. Gannett Co., Inc., 930 F.Supp. 1403 (D.Haw. 1995)
(granting motion to dismiss intention infliction of emotional distress claim
for lack of actual malice and falsity and stating that “[w]hile it is true
that the editorial page is no longer a safe harbor for otherwise actionable
libel, it is also true that the First Amendment provides broad parameters
within which comment upon public issues and public officials may safely be
made”); Clyburn v. News World Communications, Inc., 705 F.Supp. 635 (D.D.C.
1989) (granting summary judgment on limited public figure plaintiff’s claim
for intentional infliction of emotional distress, following Hustler
Magazine); Decker v. Princeton Packet, Inc., 561 A.2d 1122 (N.J.Super.Ct.
1989) (noting that federal courts have found that, “the first amendment
requires that plaintiff establish at least the same level of intent to
recover for the infliction of emotional harm as is necessary to find
defamation”); and Isaacks, 146 S.W.3d at 144 (granting summary judgment when
no evidence of actual malice).
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Summary Judgment was Proper on Clear Channel’s Alleged Negligent
Hiring Claim
Divita also argues that the trial court erred in
granting summary judgment to Clear Channel on her negligent
hiring claim.
The order entered by the trial court on January
21, 2005, granting summary judgment to Clear Channel on this
issue stated as follows, “[ ] Ziegler’s supervisors had no
reason to believe that he would disobey their instructions.
In
this instance he did so with neither the concurrence nor the
acquiescence of [Clear Channel].”
Under Kentucky law, it is well-settled that “[t]he
standard of review on appeal of a summary judgment is whether
the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was
entitled to judgment as a matter of law.”34
CR 56.03 provides
that summary judgment may be rendered “[i]f the pleadings,
depositions, answers to interrogatories, stipulations, and
admissions on file, together with affidavits, if any, show there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”
Summary
judgment is improper unless “it would be impossible for the
respondent to produce evidence at the trial warranting a
judgment in his favor and against the movant” [citation
34
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. 1996)
-19-
omitted].35
“The inquiry should be whether, from the evidence of
record, facts exist which would make it possible for the nonmoving party to prevail.
In the analysis, the focus should be
on what is of record rather than what might be presented at
trial.”36
The term “impossible” is to be applied in a “practical
sense, not in an absolute sense.”37
Summary judgment is favored in cases involving
defamation claims against media defendants.
The Supreme Court
of Kentucky encourages trial courts to “resolve free speech
litigation more expeditiously whenever possible” because”“[t]he
perpetuation of meritless actions, with their attendant costs,
chills the exercise of press freedom.
To avoid this, trial
courts should not hesitate to use summary judgment procedures
where appropriate to bring such actions to a speedy end.”38
Clear Channel and Ziegler, as the moving parties, had
the burden of proving entitlement to summary judgment,39 which
included establishing that there was no genuine issue as to any
35
Steelevest v. Scansteel, 807 S.W.2d 476, 483 (Ky. 1991).
36
Welch v. American Publishing Co., 3 S.W.3d 724, 730 (Ky. 1999); see also
Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)(noting that
summary judgment is proper only where the movant shows that the adverse party
cannot prevail under any circumstances).
37
Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992).
38
Welch, 3 S.W.3d at 729 (quoting Maressa v. New Jersey Monthly, 445 A.2d
376, 387 (N.J. 1982).
39
Christie v. First American Bank, 908 S.W.2d 679, 681 (Ky.App. 1995).
-20-
material fact, and entitlement to summary judgment with “such
clarity that there is no room left for controversy.”40
The trial
court was required to view the record in the light most
favorable to Divita, the party opposing the motions, and all
doubts were to be resolved in her favor.41
If there is any
genuine issue as to a material fact, the trial court should not
render a summary judgment, regardless of its belief as to the
opposing party’s chance of success at trial.42
If the burden
shifts to the party opposing summary judgment, he or she “cannot
defeat it without presenting at least some affirmative evidence
showing that there is a genuine issue of material fact for
trial,” [citation omitted]43 but, “the threshold [ ] is quite
low.”44
The evidence presented by the moving party in support of
its summary judgment “must be of such a nature that no genuine
issue of fact remains to be resolved.”45
Otherwise, summary
judgment is improper even when the party opposing summary
judgment presents no contradicting evidence.46
40
Williams v. City of Hillview, 831 S.W.2d 181, 183 (Ky. 1992).
41
Dossett v. New York Mining & Manufacturing Co., 451 S.W.2d 843, 845 (Ky.
1970); Puckett v. Elsner, 303 S.W.2d 250, 251 (Ky. 1970).
42
Puckett, 303 S.W.2d at 251.
43
Steelevest, Inc., 807 S.W.2d at 482.
44
Commonwealth, Transportation Cabinet, Dept. of Highways v. R.J. Corman
Railroad Company/Memphis Line, 116 S.W.3d 488, 498 (Ky. 2003).
45
Carter v. Jim Walter Homes, Inc., 731 S.W.2d 12, 14 (1987).
46
Id.
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“When faced with a motion for summary judgment, the
role of the trial [court] is not to decide issues of fact, but
instead [it] must determine whether a real issue exists”
[citation omitted].47
“Because summary judgments involve no fact
finding, this Court will review the circuit court’s decision de
novo[,]”48 since it “involves only legal questions and the
existence of any disputed material issues of fact” [citation
omitted].49
For the tort of negligent supervision,50 which is a
derivative tort from the tort which is committed by the person
being negligently supervised,51 Kentucky has adopted the
definition in Restatement (Second) of Agency § 213 (1957), as
follows:
A person conducting an activity through
servants or other agents is subject to
liability for harm resulting from his
conduct if he is negligent or reckless:
(a)
in giving improper or ambiguous orders
[or] in failing to make proper
regulations; or
47
R.J. Corman Railroad Co., 116 S.W.3d at 497.
48
3D Enterprises v. Metro Sewer District, 174 S.W.3d 440, 445 (Ky. 2005).
49
Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001).
50
See Grego v. Meijer, Inc., 187 F.Supp.2d 689, 694 (W.D.Ky. 2001) (rev’d at
Grego v. Meijer, Inc., 239 F.Supp.2d 676 (6th Cir. 2002); Turner v. Pendennis
Club, 19 S.W.3d 117, 121-22 (Ky.App. 2000).
51
Grego, 187 F.Supp 694.
-22-
(b)
in the employment of improper persons
or instrumentalities in work involving
risk of harm to others[; or]
(c)
in the supervision of the activity; or
(d)
in permitting, or failing to prevent,
negligent or other tortious conduct by
persons, whether or not his servants or
agents, upon premises or with
instrumentalities under his control.
Divita argues, “Clear Channel knew or should have
known the employment of Zeigler [sic] involved the risk of
injury to others, including [Divita].”
Divita contends summary
judgment was inappropriate and that the trial court was clearly
erroneous in light of the evidence mentioned above to find that
there was no genuine issue as to any material fact.
In support
of her argument, Divita states that Clear Channel continued to
employ Ziegler despite the numerous complaints against him
because his show received high ratings.
During the depositions,
employees of Clear Channel including Gentry and Carls,
demonstrated that they knew Ziegler’s tendencies and both
testified at their depositions that they were aware that Ziegler
had been warned and fired from previous radio and TV positions
for the same type of actions.52
Divita contends that Bill Lamb,
52
Of the complaints voiced against Ziegler, one occurred just two weeks after
his employment with Clear Channel began, when Catholic members of his
audience complained that Ziegler had “disparaged the Catholic religion in the
wake of sex scandals involving the priesthood.” Lawsuits had previously been
filed against Clear Channel and Ziegler because of his on-air comments
regarding implication of a Lexington couple in a vote-buying scandal
involving the husband’s father, and another suit was threatened after Ziegler
publicly accused a sports writer of being an alcoholic.
-23-
the general manager of WDRB and Divita’s employer, called Gentry
to complain about Ziegler’s comments about Divita and Gentry
openly admitted that his main concern was collecting revenues.
Even after the August 22, 2003, broadcast, Gentry received a
complaint from one of Clear Channels’ advertisers, but again
Gentry’s concern was the protection of revenue.
Clear Channel responds with a two-part argument.
First, it argues that because Divita’s claim of negligent
hiring/supervision is derivative of the underlying tort claims
against its employee, Ziegler, and since those claims have been
dismissed, the summary judgment issue is moot.
In the
alternative, Clear Channel argues that even if Ziegler had been
found liable on one or more of the other tort claims, there was
no evidence that Clear Channel had notice of the particular risk
that Ziegler would broadcast defamatory falsehoods about Divita.
Because we have found that the jury instructions were
proper and Divita’s claims against Ziegler have been properly
dismissed by the trial court with prejudice, the issue regarding
Clear Channel’s summary judgment award is moot.
Divita concedes
in her brief that “negligent supervision is a derivative tort
from one which is committed by the person negligently
Divita further argues that Clear Channel had notice of Ziegler’s propensities
as evidenced by the many letters written by listeners to Clear Channel during
the period of time of August 2002 through July 2003. The letters describe
Ziegler’s actions as inappropriate, degrading, vulgar, offensive, and
containing obscene language and subject matter.
-24-
supervised.”
Kentucky law supports this principle, and in such
cases,53 “a judgment on the merits in favor of an agent or
servant is res judicata in favor of the principal or master.”54
Thus, we affirm on this issue.
However, Divita has also raised evidentiary issues on
appeal which require us to address the summary judgment issue on
the merits.
We agree with Clear Channel that even if Ziegler
had been found liable on the underlying tort claims, summary
judgment in its favor would have been proper.
Under Kentucky law, an employer may be held liable for
negligent hiring or supervision “only if he or she knew or had
reason to know of the risk that the employment created.”55
“[T]here is liability only to the extent that the harm is caused
by the quality of the employee which the employer had reason to
suppose would be likely to cause the harm.”56
53
See Grego, 187 F.Supp.2d at 694 (stating that “the tort of negligent
supervision is a second tort that derives from a tort committed by the person
negligently supervised”).
54
Overstreet v. Thomas, 239 S.W.2d 939, 941 (Ky. 1951). See Johnson v.
Sawyer, 47 F.3d 716, 730-31 (5th Cir. Tex. 1995)(en banc)(stating that “in
negligent hiring or supervision cases, the general rule is clearly that
liability . . . must be predicated upon the wrongful act or omission of the
employee at the time of the infliction of the injury complained of . . . and,
if the employee is guilty of no such act or omission, there is no liability
on the part of the employer, however inexperienced, incompetent, and unfit
the employee may have been for his task. . . . No rational law would impose
liability on an employer for the nontortious acts of its employee”).
55
Booker v. GTE.net LLC, 350 F.3d 515, 517 (6th Cir. 2003).
56
See Restatement (Second) Agency , sec. 213, cmt. d.
-25-
In reviewing the record, we find no evidence that
would allow a reasonable jury to find that [Clear Channel]
failed to take adequate steps to supervise Ziegler.
It is
undisputed that Ziegler did not inform either Carls or Gentry
that he was planning to discuss Divita on the day of the August
22, 2003, broadcast.
The trial court stated, “[Clear Channel]
requested and told [ ] Ziegler that he should not discuss his
personal knowledge of . . . media personnel on the air . . . .
[ ] Ziegler’s supervisors had no reason to believe he would
disobey their instructions.”
Accordingly, we affirm the trial
court’s granting of summary judgment on Divita’s claim of
negligent hiring.
Trial Court Barred Certain Evidence to be Presented at Jury
Trial
We review a trial court’s evidentiary rulings for
abuse of discretion.57
Evidence of Ziegler’s Prior Terminations from Previous
Employment
Divita attempted at trial to offer evidence showing
the reasons for Ziegler’s termination at jobs in the past.
The
trial court based its denial upon irrelevance, stating that
because summary judgment had been granted to Clear Channel on
the claim of negligent hiring, supervision and/or retention,
57
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
-26-
that Ziegler’s previous terminations for on-the-job “bad acts”
were inadmissible.58
Divita argues that Gentry and Carls should
have learned of the negative employment issues in Ziegler’s
history before hiring him; and if Clear Channel had properly
supervised Ziegler, adequate steps would have been taken to
prevent its employee/agent from causing Divita to suffer harm as
a result of Ziegler’s comments.
Clear Channel argues that after the trial court
granted summary judgment on the negligent hiring/supervision
claims, testimony relating to Ziegler’s prior employment and
Clear Channel’s knowledge thereof was not relevant.59
Clear
Channel states that “the earlier actions of Ziegler or his prior
employers were in no way related to whether Ziegler’s statements
about Divita were actionable under the First Amendment
standards.
In other words, the fact that Ziegler was fired from
other jobs is unrelated to the ‘actual malice’ standards whether
Ziegler knew his comments about Divita were false.”
58
Divita argues in her brief that the employees of Clear Channel did not
perform a formal investigation prior to bringing Ziegler to Louisville,
despite the fact that Ziegler signed a background investigation consent form
when he came to work for Clear Channel. Carls admitted in his deposition
that during the interview process with Ziegler he learned that Ziegler had
been terminated from past employments. Ziegler himself testified to having
been terminated from previous radio positions on more than one occasion.
Gentry testified that he was not aware of any negative factors concerning
Ziegler’s prior employment until after he was hired, but admitted being aware
of the negative employment issues at the time Gentry gave his deposition.
59
Kentucky Rules of Evidence (KRE) 402.
-27-
Based upon the record, we have found that summary
judgment was proper in favor of Clear Channel in this case.60
Therefore, under KRE 402, we affirm the trial court’s refusal to
admit evidence regarding Ziegler’s prior employment terminations
and problems.
Evidence that Clear Channel was put on notice of Ziegler’s OnAir Conduct
After the trial court awarded summary judgment in
favor of Clear Channel on Divita’s negligent hiring,
supervision, and/or retention claim, the trial court sustained
(without a written order) a pretrial motion in limine
disallowing the letters from individuals in the community to
Clear Channel that Divita intended to introduce as evidence at
trial as to Clear Channel’s notice of Ziegler’s inappropriate
discussion of sexuality and sexual acts in his broadcasts.
The
individuals who had written the letters were subpoenaed by
Divita to testify at trial.
After the trial court granted Clear
Channel’s motion in limine as to the letters, the subpoenas were
quashed.
60
If Clear Channel had not been entitled to summary judgment, then the trial
court’s refusal to admit evidence relevant to the claims against Clear
Channel would have been problematic because Divita’s claims against Clear
Channel and Ziegler were heard together. The question would have become
whether admission of the barred evidence could have reasonably changed the
outcome of the underlying claims against Ziegler, and thus, allowed a
derivative claim against Clear Channel.
-28-
Divita argues that if Clear Channel had not been
granted summary judgment on the negligent hiring, supervision,
and/or retention claim, these letters and the testimony of those
who wrote the letters would have been admitted as proof that
Clear Channel was on notice of the offensive nature of Ziegler’s
comments regarding Divita, as well as Ziegler’s inappropriate
sexual comments as a whole.
Divita argues that this evidence
would have been admissible under KRE 701, Opinion Testimony of
Law Witnesses, which states as follows:
If the witness is not testifying as an
expert, the witness’ testimony in the form
of opinions or inferences is limited to
those opinions or inferences which are: (a)
Rationally based on the perception of the
witness; and (b) Helpful to a clear
understanding of the witness’ testimony or
the determination of a fact in issue.61
Clear Channel responds to this argument by stating
that all the letters identified by Divita were written after the
August 22, 2003, show and after Ziegler’s employment was
terminated by Clear Channel.
Therefore, it contends the letters
61
Kentucky’s provision was modeled after the Federal Rule of Evidence 701.
See Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990) (stating
that “[f]or opinion testimony of a layman to be admissible three elements
must be present. First, the witness must have personal knowledge of the
facts from which the opinion is to be derived. Second, there must be a
rational connection between the opinion and the facts upon which it is based.
Third, the opinion must be helpful in understanding the testimony or
determining a fact in issue”). See also Mills v. Commonwealth, 996 S.W.2d
473, 488-89 (Ky. 1999)(holding that lay witness opinion testimony based on
the witness’ own perceptions of which he had personal knowledge was
admissible as well as helpful to the jury in evaluation other evidence
presented at trial).
-29-
are not proof of any notice that Clear Channel had prior to
August 22, 2003, or whether Ziegler knew his statements about
Divita were false and actionable.
Since we have held that the
trial court’s granting summary judgment in favor of Clear
Channel was proper, we affirm the trial court’s ruling regarding
the inadmissibility of the letters written about Ziegler.
Evidence as to Divita’s Employability Subsequent to Ziegler’s
Comments
At trial, Divita attempted to introduce the testimony
of Kristen Cornette, an employee of Clear Channel, who testified
by avowal, regarding her opinion as to the impact Ziegler’s
comments had on Divita’s ability to become employed in the media
industry after Ziegler’s remarks on August 22, 2003.
Divita
also offered testimony from Lamb, General Manager of
Louisville’s WSRB Fox 41 station, who was to testify as to the
damages Divita suffered as a result of Clear Channel’s
publications.
The trial court ruled during the trial that
opinions concerning Divita’s decrease in employability after
Ziegler’s comments should have expressed through expert
testimony, not through lay witnesses and that the testimony
should have been included in Divita’s Rule 26.02 disclosure of
witnesses.
Since we have affirmed on all issues related to
liability, these issues which solely involve damages are moot.
-30-
For the foregoing reasons, the orders of the Jefferson
Circuit Court are affirmed on all issues.
ALL CONCUR.
BRIEF FOR APPELLANT:
Thomas E. Clay
Garry R. Adams
Louisville, Kentucky
BRIEF FOR APPELLEE, JOHN
ZIELGER:
Kenneth L. Sales
D. Matthew Kannady
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANT:
Thomas E. Clay
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLEE,
JOHN ZIEGLER:
Kenneth L. Sales
Louisville, Kentucky
BRIEF FOR APPELLEE CLEAR
CHANNEL BROADCASTING, INC.:
Sheryl G. Snyder
Griffin Terry Sumner
Amanda G. Main
Louisville, Kentucky
Richard M. Goehler
Cincinnati, Ohio
ORAL ARGUMENT FOR CLEAR
CHANNEL BROADCASTING, INC.:
Sheryl G. Snyder
Louisville, Kentucky
-31-
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